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An English legal ethics man in Miami

My impression is that the legal ethics dialogue is highly developed in the United States. The extent to which people practice what is preached over there is something I have heard word about but can’t guess at too accurately. Maybe its lawyers are more prone to extreme badness and so the discussion has more to feed on; they bribe judges over there, or try, or so it is alleged. And lawyers get access to their clients’ alleged victims’ laptops by having private investigators pose as researchers on internet use, and offering a new laptop in exchange for the old. And get away with it on the basis that they did not do the deed personally.

The extent to which the appearance of heightened discussion is merely a function of a huge population and a huge blogosphere is also something I find it difficult to guess at. Now there is an experiment which will help me work it out. An Englishman, John Flood, author of Random Academic Thoughts, is over in Miami, visiting a law school. And he’s blogging about it. So far, he’s impressed. While he’s in Florida, he could drop in on Jim Morrison’s birthplace, Melbourne, and let us all know how Melbourne, London, and Miami stack up against each other.

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Pro bono in Victoria; McLelland to copy Hulls’s carrot theory

The Age‘s Julie Szego has written a substantial article in The Age about barristers and pro bono in Victoria. It arises out of Fiona McLeod SC volunteering her time to represent the Blue Wedges coalition which is opposing the Port of Melbourne’s channel deepening project. The Victorian Bar’s pro bono scheme, administered by Victoria’s cutting-edge one stop pro bono shop, the Public Interest Law Clearing House gets a mention, but another scheme, devised by the Bar recently, did not. That’s the duty barrister scheme where barristers agree to go to a particular court for a day and take whatever they are assigned for whoever needs them most.

Then The Australian has a story about the new Labor government’s contemplation of copying Victorian Attorney General Rob Hulls’s innovative method for getting the big end of town to do pro bono with alacrity. If Attorney-General Robert McLelland’s policy plan is to get big firms doing pro bono more equally and with more equal conviction than is presently the case, it’s a no brainer. It worked brilliantly in Melbourne. Continue reading “Pro bono in Victoria; McLelland to copy Hulls’s carrot theory”

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Justice Kevin Bell appointed VCAT’s President

I had heard the rumour a fair while ago from the most impeccable sources in VCAT and the Supreme Court that the Supreme Court’s Justice Bell was hot tip to take over from Judge Bowman as VCAT’s head. Now it’s confirmed. Frankly, though it would not be every lawyer’s cup of tea, it’s a great job, and a most important appointment. Continue reading “Justice Kevin Bell appointed VCAT’s President”

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A case about contested quantum in crash and bash litigation

Stocovaz v Fung [2007] NSWCA 199 is a rare thing: a superior court decision about motor vehicle property damage litigation, more commonly known as ‘crash ‘n’ bash’. The New South Wales Court of Appeal said that the plaintiff is entitled to the amount actually paid for repairs unless the defendant can establish that it was ‘extravagant’ in the sense of being outside the range of amounts which a reasonable person would pay for the repairs. There seems to be a policy to avoid clogging up the courts with cases which take a comparatively long time to hear, but amount to squabbles between insurers over differences of a few thousand dollars. Carter Newell’s case note is here.

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On blogging

The other day, I did a very geeky thing which was also a bit unonline. I had a coffee with fellow lawyer blogger, the mysterious Legal Eagle. One result of the coffee was that somehow I charmed her into writing a second case note of interest to readers of this blog — this time on the long and not entirely straightforward decision of the Victorian Court of Appeal in Equuscorp v Wilmoth Field Warne, referred to briefly in my post ‘Cases, cases’. Go read it. A second may have been that Ms Eagle has ‘tagged’ me with a ‘meme’. It’s very blogosphere. I will participate, but one of the three limbs of this modern day chain letter is going to die with me as I don’t intend to tag anyone else. I will be very grateful if some of the effusive commenters over at her blog migrate over to mine and get a bit of discussion going. So, 3 reasons why I blog. Continue reading “On blogging”

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Once the time for taxation runs out, the solicitor can sue on the bill as a simple debt

I have never been quite clear about what you have to prove in a suit for fees. I was attracted to the proposition that if a client wants to go through a bill item by item, the place to do that is in a taxation, and if they do not go down that path, or they can’t because they’re out of time, then no challenge of the kind typical of a taxation ought to be allowed in the suit for fees, that is, that the bill may be sued on as a debt due and owing. But I was never entirely confident about it.

The Full Legal Profession Tribunal’s 16 June 2000 decision in B v Home Wilkinson Lowry [1999] VLPT 1 is authority for many things (principally that state tribunals like VCAT have no jurisdiction over the costs of Family Court proceedings), and seems to be authority too for the proposition which attracted me. Continue reading “Once the time for taxation runs out, the solicitor can sue on the bill as a simple debt”

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Britney Spears’s ‘doctor’ criticised for public comments

I am always astounded how many professionals make public comments about their clients. I cannot really understand why society allows lawyers to publish their memoirs. I read John Marsden’s memoirs, and was not impressed by his comments about Ivan Milat. If I remember correctly, they suggested, or rekindled the suggestion in the public mind, that Mr Milat got away with rapes long before he started knocking backpackers off, that it was Marsden’s brilliance which had achieved that, and that Marsden, cancer-stricken, wanted to tell the world that he rather regretted it now. Marsden also named, to the media, a woman whom he said was Mr Milat’s accomplice in the murders. Criminal lawyers have to live with secrets which bear down heavily on them. Perhaps it is not surprising that Marsden made the disclosure. But where was the reportage that this was a serious transgression? I am not speaking of condemnation, but rather an acknowledgment that this is not as it should be. All this assumes, of course, one thing which I do not know, namely that Mr Marsden did not have Mr Milat’s permission to make these statements.

Here’s an article about Britney Spears’s doctor, Dr Phil McGraw. Continue reading “Britney Spears’s ‘doctor’ criticised for public comments”

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Black and white

On Australia Day, I watched the 2002 film ‘Black and White’, about the Max Stuart case. I had picked up historian Ken Inglis’s book on the case at a church fete the other month, thinking it was the kind of thing a young barrister should have in his chambers, and flicked through it at the time before putting it in the waiting room for unread books. It was an excellent film, and I’ve reshuffled the book towards the front of the waiting room. Max Stuart is an aborigine who worked at a travelling fun fair. He was convicted of murder in 1959 on the flimsiest circumstantial evidence and a confession. He had previously been convicted of indecently assaulting a girl, had been a bare knuckle boxer, and was a heavy drinker. Continue reading “Black and white”

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Application by appellant to remove respondent’s trial counsel from appeal dismissed

In Chen v Chan [2008] VSCA 2, President Maxwell and Justice of Appeal Redlich dismissed an application by the appellant for an order enjoining the respondent’s solicitor and counsel from acting in the appeal. The applicant alleged that there had been wrongdoing by the respondent’s lawyers at the trial. In fact that was one of the grounds of appeal. It is certainly the case that where a lawyer is to be a witness, he ought not continue to act, especially as an advocate. But their Honours held: Continue reading “Application by appellant to remove respondent’s trial counsel from appeal dismissed”

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Hercules and the Magistrates’ Court rule requiring reasons for denials in defences

I had a little debate with the Supreme Court not so long ago about whether my client’s bare denial defence was appropriate. A bank had pleaded that my client had mortgaged his house to it. My client simply denied the allegation. I said by way of a place to start the discussion that it was indubitably a proper pleading if my client’s case was that he had never had anything to do with the Bank. It is not necessary to plead, I said, “The defendant denies paragraph 4, and says further that he had never had any dealings with the Bank, and they must have sued the wrong person”, nor “… that it was not him but his cousin with the same name who mortgaged his house to the Bank”. I thought that was uncontroversial, but it proved not so.

In Keith Hercules v Magistrates’ Court of Victoria [2008] VSCA 1, Mr Hercules, a Melbourne sole practitioner, applied to strike out the defence of a personnel agency he sued. He pointed out that the Magistrates’ Court Rules are peculiar in requiring reasons to be given for denials. He failed, and was ordered to pay costs. Instead, the Magistrate ordered the provision of further particulars. It seems that Mr Hercules had acted peremptorily, without first raising his complaints with his opponent, as is the custom. As the Court of Appeal said: Continue reading “Hercules and the Magistrates’ Court rule requiring reasons for denials in defences”